Values and objectives

One striking characteristic of the Lisbon Treaty is that it is deeply rooted in human rights, as was the case of the failed Constitutional Treaty. As mentioned by an American author, ‘much of the Constitution is given over to the issue of fundamental human rights. It might be said that human rights are the very heart and soul of the document.’

The Lisbon Treaty puts to the forefront the values on which the EU is based (see Box 15). It also takes the highly symbolic steps both of giving the Charter of Fundamental Rights the same legal value as the treaties (Article 6(1) TEU) and of providing for an obligation for the EU to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6(2) TEU).

Box 15. THE UNION'S VALUES (ARTICLE 2 TEU)

Article 2 TEU on the Union's values is not only a political and symbolic statement. It has concrete legal effects.

Adapting the institutions to an enlarged EU

Among the most visible changes brought about by the Lisbon Treaty are the reforms of the institutions: these reforms concern the number of the institutions and their respective powers, composition and internal functioning. The institutions will now have to cope with the increased rights given to other political actors, such as the national parliaments, the Committee of the Regions and the citizens themselves.

The Lisbon Treaty increases the number of the EU institutions from five to seven, by giving the European Council and the European Central Bank the status of institution. The respective powers of the institutions are somewhat reshuffled, most notably through a widening of the scope of the codecision procedure, an increase in the number of cases where a (redefined) QMV in the Council will apply, a reform of the budget decision-making procedure, the creation of the new offices of a full-time European Council President, elected for up to five years, and of a Union High Representative for Foreign Affairs and Security Policy, appointed for five years, who is the president of the Foreign Affairs Council as well as one of the vice-presidents of the Commission, a reference to the Eurogroup which is chaired by a president elected by his/her peers and an extension of the jurisdiction of the Court of Justice.

May and June 2005: the peoples of two of the six founding members of the European Union, France and the Netherlands, consulted by referendum, refuse to ratify the Constitutional Treaty for Europe.

June 2008: the people of Ireland, one of the countries which has benefited most from the European Union, rejects the ratification of the Lisbon Treaty.

What is happening?

Does this mean that the dreams of a reconciled and more united Europe are dying? What exactly are those dreams? And, to begin with, which countries and peoples are concerned?

It is not easy to give a definition of Europe, whether geographically, historically or culturally.

Geographically, Europe is not a precise concept. It is not a continent, but rather a peninsula at the western edge of the Eurasian continent. Its eastern borders are far from being precise. It presents a vast variety of landscapes and climates, from the driest places of its Mediterranean coasts to the polar regions of Lapland.

It has always been populated by many diverse peoples, mainly but not only Christians, using dozens of languages and even different alphabets.

Historically, these peoples have organised themselves into national entities, according to their religions, languages or geographical situation. Over the centuries, Europeans have developed and strengthened the concept of the nation state. The European nation states have nurtured their differences, thus favouring nationalism, something which often led to wars with their neighbours. Nationalism explains why European nations have been fighting each other over the centuries.

Both in the 2002–3 Convention and in the 2003–4 IGC, the ambition was to take a major qualitative step forward in the field of external affairs. The aim was to make the Union more ‘present in the world’, as the European Council had requested in the 2001 Laeken Declaration. This was to be achieved by improving the functioning of the CFSP, as well as the consistency between the different areas of EU external policy: CFSP, trade, development, humanitarian aid and other sectoral external policies in environment, transport and so on, essentially through the establishment of new institutional tools.

External affairs before the Lisbon Treaty

The origins and scope of the external competence of the Community

In the 1957 Rome Treaty, the EC competence in external affairs was purely economic, and in particular linked to the fact that the EC was first created as a customs union, with a common customs tariff. As international trade developed, and the EC progressively liberalised its internal trade and made use of its internal competences to create its internal market, with free movement of goods, services, capital and persons and harmonised internal rules, the corresponding external competences also developed. This was necessary to avoid the possibility that, by concluding international agreements on matters covered by internal EC rules, Member States would affect these rules or impede their development.

The origins of the EU Charter of Fundamental Rights

The original EC Treaty did not make any reference to fundamental rights. It was the 1992 Maastricht Treaty which inserted Article 6(2) in the EU Treaty, providing that ‘the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms … and as they result from the constitutional traditions common to the Member States, as general principles of Community law’. Before that, the EU Court of Justice had, as early as in 1969, stated that fundamental human rights are ‘enshrined in the general principles of Community law and protected by the Court’. Thereafter, the Court continued strengthening this protection so that ‘respect for human rights is … a condition of the lawfulness of Community acts’.

Such a guarantee was a prerequisite for the acceptance by Member States of the principle that EU law has primacy over national law, a principle which the Court of Justice had already enunciated in 1964. Without a guarantee that fundamental rights were properly protected at EU level, the conferral by Member States of competences on the EU might have entailed a lowering of the level of protection of human rights. This link with primacy was made very clearly by the German Constitutional Court in its case law which became known as Solange (meaning ‘as long as’ in German).

In its judgment of 26 November 2008 (71 pages, 218 paragraphs), the Czech Constitutional Court concluded that the Lisbon Treaty and the EU Charter of Fundamental Rights are not in conflict with the Czech constitutional order.

It stressed that the Court had concentrated its review only on those provisions of the Treaty whose consistency with the Czech Constitutional order were expressly contested. Therefore it remained legally possible that a group of deputies or senators might submit a new petition on the constitutionality of other provisions of the Lisbon Treaty.

The Court stressed that the transfer of powers from State organs of the Czech Republic to an international organisation cannot go as far as to violate the very essence of the Republic as a democratic State governed by the rule of law, founded on respect for the rights and freedoms of human beings and of citizens. A transfer to the EU of the competence to define its own competences (Kompetenz-Kompetenz) would also be inconsistent with the Czech Constitution. However, the Court noted that the Lisbon Treaty does not have such consequences and it concluded that the Lisbon Treaty, together with the EU Charter of Fundamental Rights, is consistent with the Czech constitutional order. The Court stressed that the transfer of certain competences of the State to the EU, which arises from the free will of the State and which will be exercised with its participation, is not a weakening of the sovereignty of the State.